Torts

Question 1

Elements of Negligence

Answer 1

Under the common law of torts, the elements of negligence are:

1. Duty,
2. Breach of duty,
3. Actual cause,
4. Proximate cause, AND
5. Harm/damages.

Question 2

Actual Causation

Answer 2

But for the defendant’s breach, the plaintiff’s harm would not have occurred.

Question 3

Proximate Causation

Answer 3

If the conduct is the actual cause, then defendant’s breach will be the proximate cause if the resulting harm was to a FORESEEABLE PLAINTIFF in the ZONE OF DANGER from the defendant’s vantage point.

Question 4

Foreseeable Intervening Cause

Answer 4

Another tortfeasor’s independent, separate, negligence will not cut of a tortfeasor’s liability if the intervening event is foreseeable. If a person is injured, for example, it is foreseeable that he may receive negligent medical treatment.

Question 5

Superseding Intervening Cause

Answer 5

An intervening cause of harm is superseding if it was unforeseeable or independent of the risks created by the defendant’s conduct.

Question 6

Assumption of Risk

Answer 6

Assumption of risk may provide a defense where a plaintiff has voluntarily exposed himself to an injury.

Question 7

Negligence Per Se

Answer 7

Under NY law of torts, in a case of negligence per se, the statute established the duty. Violation of the statute establishes the harm. There are two conditions for negligence per se:

1. The plaintiff is a member of the class intended to be protected, AND
2. The harm is of the kind the statute was designed to prevent.

Question 8

Negligent Infliction of Emotional Distress

Answer 8

Under the NY law of torts, for a bystander to state a cause of action for negligent infliction of emotional distress requires proof that the bystander:

1. was in the zone of danger,
2. suffered some physical manifestation of the distress, or was an immediate family member, AND
3. the negligent conduct would have severely distressed a reasonably prudent person.

Question 9

Intentional Infliction of Emotional Distress

Answer 9

Where the claim is for intentional infliction of emotional distress, the plaintiff must prove:

1. that the defendant unreasonably endangered the plaintiff’s safety, OR
2. that defendant transmitted a false report of a death or negligently mishandled a corpse, and plaintiff suffered some physical manifestation of the distress.

Question 10

Release of Liability

Answer 10

Under New York tort law, a written releasee of liability is enforceable if it is unmistakably clear. To release the defendant from liability for negligence, the word “negligence” must be mentioned. NY does not enforce a release by recreational users of clubs, pools, or other amusement places where a fee is charged.

Question 11

Res Ipsa Loquitur

Answer 11

Under NY tort law, in a case of res ipsa loquitur, the court may admit circumstantial evidence to show breach. There are three conditions for res ipsa loquitur:

1. The incident does not normally occur without someone’s negligence,
2. The instrument which caused the injury was under the defendant’s exclusive control, AND
3. The plaintiff did not cause the incident.

Question 12

Respondeat Superior

Answer 12

Under the common law doctrine of respondeat superior, an employer or principal is vicariously liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency. This can only include intentional torts such as battery if they are reasonably included within the scope of employment.

Question 13

Vicarious liability for negligent use of a vehicle

Answer 13

Under the New York Vehicle and Traffic Law, the owner of a vehicle is vicariously liable for injuries resulting from negligence in the use or operation of the vehicle by a person using or operating the vehicle with the owner’s express or implied permission. Proof of ownership creates a rebuttable presumption that the driver was using the vehicle with permission.

Question 14

No-Fault Automobile Insurance

Answer 14

Under NY Insurance Law, a vehicle registered in NY must have no-fault insurance coverage. A person injured in an automobile accident is normally limited to recovery under the provisions of the No-Fault law and cannot bring a cause of action in negligence.

An injured party can bring a cause of action against the insured for economic loss if the damages exceed $50,000. He can bring a cause of action for non-economic loss (including pain and suffering) only if he has suffered a “serious injury”).

Question 15

“Serious Injury” (for purposes of No-Fault)

Answer 15

Under NY Insurance Law, “serious injury” means:

1. Personal disfigurement,
2. Fracture,
3. Loss of a fetus,
4. Permanent loss of use of a body organ or member,
5. Significant limitation or use of a body function or system, OR
6. A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.

Question 16

Driving While Intoxicated

Answer 16

Under NY VTL, no person shall operate a motor vehicle with .08 of one percent or more weight of alcohol in his blood.

Question 17

New York Scaffold Law

Answer 17

The NY Scaffold Law requires that scaffolds used more than 20 feet above the ground must have safety railing.

Violation of Scaffold Law takes the matter out of Worker’s Compensation and makes the employer strictly liable.

Question 18

Strict Liability (WASP)

Answer 18

Under New York tort law, strict liability does not depend on actual negligence or intent to harm, but is based on a breach of an absolute duty to make something safe. Duty and breach are presumed, but actual and proximate cause and damages must still be proved. Except as specifically provided by statute, there are 3 types of strict liability claims:

1. Wild animals,
2. Abnormally dangerous activities, and
3. Strict products liability

Question 19

Strict Product Liability Theories

Answer 19

Under NY tort law, there are three theories of strict product liability. The theories are:

1. Failure to warn,
2. Manufacturing defect, OR
3. Design defect.

Question 20

Defective Product

Answer 20

Under NY law, a product is a defective if it would defeat the reasonable expectations of the reasonable consumer

Question 21

Design Defect

Answer 21

A defectively designed product is a product whose dangers outweigh its benefits. If a reasonable alternative design exists that would have alleviate the dangers without unreasonable sacrifice in functionality or cost, a defective design cause of action exists.

Question 22

Strict Product Liability

Answer 22

Under NY tort law, there are four conditions for strict product liability:

1. The seller was in the business of selling goods,
2. The goods were defective when they left the seller’s hands,
3. The defect caused the plaintiff’s injury, and
4. The product was expected to and did reach the consumer in the same condition in which it left the manufacturer.

Question 23

Modification Defense (strict product)

Answer 23

Under NY tort law, if an otherwise safe product is rendered unsafe through a substantial modification by a user, then no cause of action exists in strict products liability if the product left the manufacturer’s hands not defective. If, however, the manufacturer is aware that a modification to its product makes it highly dangerous, then it has a duty to warn of foreseeable dangers.

Question 24

Personal Injury Action

Answer 24

Under NY law, a party may receive compensation in a personal injury action for:

1. lost wages and loss of consortium,
2. medical bills,
3. property damage,
4. physical and mental disability, and
5. pain and suffering.

Question 25

Tortious Interference With Contractual Relations

Answer 25

Under New York law, the elements of tortious interference with contractual relations are as follows:

1. Existence of a valid business contract between plaintiff and a third party,
2. Defendant knew of the contract,
3. Defendant acted intentionally to interfere with the contract,
4. Defendant had an improper purpose, AND
5. Damages.

Question 26

Wrongful Death

Answer 26

Under NY tort law, if the action is brought in a timely manner, then the personal representative of the estate duly appointed in this state or any other jurisdiction may recover damages for the wrongful death of the decedent. Where a decedent is survived by distributees, the representative may maintain an action to recover damages for a wrongful act which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not resulted.

Question 27

Plaintiff in a Wrongful Death Action

Answer 27

Only the executor of the will or the administrator of the estate, if there is no will, can bring a wrongful death action.

Question 28

Damages in a Wrongful Death Action

Answer 28

The award of damages in a wrongful death action is limited to fair and just compensation for the pecuniary loss from the decedent’s death. Loss of consortium is not included. The damages are:

1. Possible inheritance and punitive damages, where the underlying tort-claim would merit punitive damages,
2. Medical expenses incidental to death and funeral expenses, and
3. Loss of Financial Support an Loss of Services.

Question 29

Defamation

Answer 29

Under NY law, the elements of defamation are:

1. False words injurious to another person’s reputation,
2. Published to a third party without privilege or authorization,
3. With fault amounting to at least negligence, AND
4. Except as to defamation per se, with resulting injury to reputation.

Question 30

Defamation per se

Answer 30

Under NY law, in cases of defamation per se, damages are presumed and plaintiff need not prove actual damages. With limited exceptions, slander per se arises where verbal allegations reflect adversely on plaintiff’s business competence or reputation, or impute to plaintiff serious sexual misconduct, criminal activity, or a loathsome disease. Normally the court will permit the award of punitive damages where defendant’s false statement was made with improper motive or with knowledge of falsity or recklessly with respect to truth or falsity.

Question 31

Qualified Privilege

Answer 31

Under NY law, an affirmative defense of qualified privilege protects statements made without malice, where a defendant had an interest in making the statement and the recipient had a corresponding interest in receiving it.

Malice means publication of defamatory material in bad faith, without belief in the truth of the matter published, or with reckless disregard of the truth or falsity of the matter published. The burden is on the defendant to show the existence of a recognized public or private interest.

Question 32

Public Figures

Answer 32

Under New York Times v. Sullivan “actual malice” standard, the plaintiff must prove that the statement was made with knowledge that it was false or with reckless disregard of truth or falsity.

Question 33

Municipal Immunity from Civil Suits

Answer 33

Under NY law, generally a municipality is not liable for its failure of general governmental duties. Where a specific relationship is created between the municipal agency and the plaintiff, however, municipal tort liability may exist. These exceptions require:

1. The municipality voluntarily, expressly, or impliedly promised or took action to act for the plaintiff’s benefit, thus assuming a duty to the plaintiff,
2. The plaintiff justifiably relied on the municipality’s promise, AND
3. The municipality had knowledge that its inaction could foreseeably harm the plaintiff.

Question 34

Battery

Answer 34

Under the common law of torts, a batter occurs when someone intentionally causes harmful or offensive contact with another person. The intent is either:

1. The intent to cause an offensive and unwanted contact, and such contact results, OR
2. The intent to cause an assault (immediate apprehension of offensive contact), which results in an offensive and unwanted contact.

Question 35

Transferred Intent

Answer 35

Under the common law of torts, the doctrine of transferred intent, when a person intends to cause harmful or offensive contact to one person, but mistakenly causes harmful or offensive contact to another person, the intent is transferred to the latter action.

Question 36

Assault

Answer 36

Under the common law of torts, an assault is:

1. The intent to attempt to commit a battery upon another person, OR
2. The intent to cause immediate apprehension of offensive contact.

Question 37

Land Owner’s/Possessor’s Duty to Entrants

Answer 37

New York no longer makes classifications regarding a landowner’s duty to entrants (ex: trespasser, invitee, or licensee). Instead, in New York, a landowner owes a duty of reasonable care to all entrants upon his land, irrespective of their status on the land.

In other words, a landowner must exercise the care of a reasonably prudent person under the circumstances. However, the status of the entrant on the land may be relevant for determining what care would be owed by a reasonably prudent person.

Question 38

Pure Comparative Negligence

Answer 38

Under the common law, contributory negligence would bar any recovery by a negligent plaintiff. However, New York has adopted a pure comparative negligence rule, in which the plaintiff’s assumption of risk or negligence will not bar recovery. However, it is a factor in determining the percentage of fault of each party and will reduce the plaintiff’s recovery by the percentage of his own fault.

Question 39

Failure to Use a Seatbelt

Answer 39

Failure to wear a seatbelt in an automobile accident is treated as an affirmative defense, which must be pleaded and proven by the defendant. If the defendant is able to establish this defense, a jury may conclude that the plaintiff failed to mitigate his damages and reduce the amount of damages awarded. However, the non-use of a seatbelt may not be used as evidence as to the issue of liability.

Question 40

Intra-Family Immunity

Answer 40

New York has abolished intra-family immunity. There is no cause of action in New York for the negligent supervision of a child. Thus, a child may not bring a cause of action against his parent(s) for negligent supervision. However, a parent could be sued for negligent entrustment when the parent fails to protect third parties from a foreseeable harm from a child’s use of a dangerous instrument, which was subject to the parent’s control.